The instant complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the instance of intending purchasers against the Developer/Builder (Opposite Party No.1) and others including Marketing Agent (Opposite Party No.4) on the allegation of deficiency in services on the part of them in a consumer dispute of housing construction.
Succinctly put, Complainants’ case is that they had entered into an Agreement for sale with the opposite parties to purchase of a self-contained flat measuring about 1757 sq. ft. super built up area being No.B0902 and one covered car parking space in the project named ‘Sunny Fort’ lying and situated at Action Area – IIB, Block-7, New Town, Kolkata at a total consideration of Rs.55,18,290/-. The complainants have stated that they have already paid Rs.49,91,257/- out of the said total consideration amount. The opposite parties were agreed to complete the construction and hand over the same by 30.09.2011. However, the opposite parties could not keep their promise. Therefore, the complainants have approached this Commission with the present complaint with prayer for direction upon the opposite parties to hand over the subject flat in every respect and to execute and register the Deed of Conveyance together with the amenities and facilities attached thereto, to pay compensation of Rs.11,98,000/- for harassment and mental agony and Rs.25,000/- as litigation cost.
Despite receipt of notice, OP Nos. 1 & 2 did not file written version. However, applying the principle of law laid down by Hon’ble Supreme Court in the case reported in (1998) 4 SCC 619 [Modula India – Vs. – Kamakshya Singh Deo] the OP Nos. 1 & 2 were given opportunity to cross examine the complainants’ witnesses and to address argument on the basis of complainants case. Accordingly, questionnaire has been filed by OP No.1/developer and further OP Nos.1 & 2 participated in the final hearing of the case and addressed argument by filing brief notes of argument.
OP No.4 i.e. Marketing Agent by filing written version has stated that no privity of contact exists between them and the complainants and they are in no way connected with the material allegations made by the complainants and as such the complaint should be dismissed against them.
OP No.3 initially appeared to contest but subsequently abstained itself from contesting the case.
In support of their case, complainant no.1 Sri Prakash Sharma has tendered evidence on affidavit for himself and on behalf of his wife i.e. complainant no.2. The said witness has also given reply against the questionnaire set forth by OP No.1.
As OP Nos. 1 & 2 did not file written version, naturally they lost the opportunity to file evidence through affidavit.
On the prayer of OP No.4, the contents of written version supported by affidavit was treated as evidence on affidavit on the part of them.
At the time of final hearing, complainants, OP Nos. 1 & 2 and OP No.4 have filed their respective brief notes of arguments.
On perusal of pleadings, evidence on record and the brief notes of arguments filed on behalf of the parties and the documents available with the record, it emerges that on 14.05.2011 the OP No.1/developer issued a letter of allotment in favour of the complainants for allotment of a self-contained flat measuring about 1757 sq. ft. super built up area being No.B0902 and one covered car parking space in the project named ‘Sunny Fort’ lying and situated at Action Area – IIB, Block-7, New Town, Kolkata at a total consideration of Rs.55,18,290/- of which the price of the unit was fixed at Rs.52,18,290/- and the rate of car parking space was settled at Rs.3,00,000/-. The payment receipts available with the record suggest that the complainants have already paid Rs.49,91,257/- and an amount of Rs.5,27,033/- is still due and payable by the complainants. The OP No.1/builder was under obligation to hand over the possession and execution of Sale Deed by 30.09.2011.
Clause 5 of Standard Terms and Conditions (STC) relates to possession, which provides –
'5. Possession: Unless prevented by circumstances beyond the control of the developer, and subject to Force Majeure which shall, inter alia mean non-availability or irregular availability of essential inputs, strike by contractors and/or workmen, litigation and any Acts of God, the developer shall ensure to complete the said unit in all respects by 30.09.2011 (Completion Date) with the grace period of further six months.......'.
Needless to say, the parties are bound by the terms of the agreement. Both the parties have signed the agreement with open eyes evaluating its pros and cons and therefore, nothing can be added or detracted from the terms and conditions of the contract. Therefore, the agreement between the parties towers above the rest. In AIR 1996 SC 2508 (Bharti Knitting Co. – Vs. DHL Worldwide Express Courier Division of Airfreight Ltd.) the Hon’ble Supreme Court has observed thus –
'In an appropriate case where there is acute dispute of facts necessarily the Tribunal has to refer the parties to original Civil Court establish under the CPC or appropriate State Law to have the claims decided between the parties. But when there is a specific term in the contract, the parties are bound by the terms in the contract'.
As per terms of Agreement, the payment was linked with progress of construction. The fact remains that the OP No.1/developer could not complete the construction and as such they could not communicate the complainants to take delivery of possession after payment of balance consideration amount. During the pendency of the proceeding, precisely on 12.06.2015 the OP No.1 had applied for Completion Certificate but only on 15.12.2017 they submitted the drawings and all necessary documents in respect of the building and thereafter on inspection of the premises, on 05.01.2018 the Occupancy Certificate was issued by the New Town Kolkata Development Authority (NKDA). Therefore, it is quite clear that the OP No.1/developer could not keep their promise in handing over possession of the subject flat within the time frame, specifically by 30.09.2011.
Mr. Abhik Kumar Das, Ld. Advocate appearing for OP Nos. 1 & 2 has submitted that the complainants have made a prayer ‘to be completed in every respect’ and have further prayed for ‘the amenities and facilities thereto’ in the Prayer Clause of the petition of complaint and as such in view of decision of Larger Bench of Hon’ble National Consumer Commission in the case of Ambrish Kumar Shukla & 21 Ors. – Vs. – Ferrous Infrastructure Pvt. Ltd. reported in I (2017) CPJ 1 the complaint is not entertainable as there are several complaints filled by several buyers and when the grievances of consumer is common and identical, permission under Section 12(1)(c) of the Act should have been obtained at the time of lodging the complaint. He has further submitted that if the value of all the flats in different complaint cases are taken together, certainly this Commission lacks pecuniary jurisdiction to entertain the complaint.
Mr. Anirban Pramanik, Ld. Advocate for OP No.4 has submitted that they had entered into an Agreement with the other opposite parties for marketing of ‘Sunny Fort’ project as a real estate marketing consultant and they are in no way connected with the agreement between the developer and the intending purchaser and as such the complaint should be dismissed against them.
Per contra, Mr. Anjan Kumar Dutta, Ld. Advocate for the complainants has contended that the OPs though received the consideration amount as per terms of the agreement but they deliberately neglected to hand over the flat and car parking space to the complainants and also failed to execute and register the Deed of Conveyance within time which amounts to deficiency in services and unfair trade practice on the part of Opposite Parties.
It is well settled that after accepting the consideration amount as per agreement, the developer is under obligation to – (a) deliver possession, (b) execute and register the Sale Deed and (c) obtain completion certificate/occupancy certificate from the authority concerned. The evidence on record indicates that only on 05.01.2018 the builder could obtain occupancy certificate but it has failed to deliver possession and to execute the Deed of Conveyance as agreed by them within 30.09.2011 and meanwhile almost 6 years have been elapsed.
The submission made by the Ld. Advocate for OP Nos. 1 & 2 with regard to initiating a ‘class action’ under Section 12 (1)(c) of the Act could not inspire me. I have gone through the Issue No.(i) and Issue No.(iv) of the referred decision of Hon’ble National Commission. In the prayer clause of petition of complaint, the complainants have made a prayer to provide amenities and facilities attached with the terms of agreement but no where it has been mentioned that they prayed for relief for common facilities or benefits. The individual buyers being failed to convince the developer to hand over the flats led them to lodge the complaint with prayer for direction to deliver possession and to execute the Deed of Conveyance in favour of them along with compensation and cost. Therefore, the submission made by the Ld. Advocate for the OP Nos. 1 & 2 in this regard appears to be fragile.
On evaluation of materials on record, it transpires that the complainants being ‘consumer’ as defined in Section 2(1)(d) of the Act hired the services of OP no.1 on consideration and OP No.1 has failed to fulfil their part of obligations as per STC and thereby deficient in rendering services towards the complainants within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act. Therefore, the complainants are entitled to some reliefs. In my view, direction upon the OP No.1 to deliver possession and to execute the Sale Deed within 60 days on receipt of balance amount of Rs.5,27,033/- will meet the ends of justice. Despite payment of almost entire consideration amount, when the complainants were deprived from having a roof of their own over their head for long six and half years, certainly it caused tremendous mentally agony and harassment for which they are entitled to compensation and considering the loss suffered by them, I assess the compensation in the form of simple interest @ 8% p.a. from committed date of possession i.e. from 01.04.2012 (inclusive of six months grace period) till the date of del
Please Login To View The Full Judgment!
ivery of possession. Under compelling circumstances, the complainants have to knock the door of a Forum constituted under the Act and therefore, complainants are entitled to litigation cost which I quantify at Rs.5,000/-. With the above discussion, I dispose of the complaint with the following directions – i. The opposite party no.1 is directed to deliver Letter of Possession and to execute the Deed of Conveyance in respect of the flat as per Agreement (STC) in favour of complainants within 60 days from date, ii. The opposite party no.1 is directed to pay compensation of in the form of simple interest @ 8% p.a. from the committed date of possession 01.04.2012 (inclusive of six months grace period) till the date of delivery of possession, iii. The opposite party no.1 is directed to pay Rs.5,000/- as cost of litigation to the complainants, iv. The balance amount payable by the complainants, if any, shall be adjusted by OP No.1 out of the compensation payable to them in terms of this order. The balance compensation, if any, shall be paid at the time of offering possession of the flat to the complainants, in terms of this order.